Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Colombia (Ratification: 1976)

The Committee notes the Government’s report. The Committee also notes the communication from the Minister for Social Security addressed to the Director‑General which was read in the Conference Committee on the Application of Standards, reaffirming the Government’s commitment to the Tripartite Agreement for the Right of Association and Democracy, signed by the Government and the employers’ and workers’ representatives on 1 June 2006 in Geneva, and expressing the wish to reinforce its implementation. The Committee also notes the reply sent by the Director-General indicating that the Office will provide all possible assistance to ensure the effective application of the stated measures. In this respect, it was proposed to send an ILO high-level mission, appointed by the Director-General, in order to identify new needs in relation to ensuring the effective application of the Tripartite Agreement and of the technical cooperation programme. The Committee also notes the numerous cases concerning Colombia which are being examined by the Committee on Freedom of Association.

Moreover, the Committee notes the comments on the application of the Convention from the International Trade Union Confederation (ITUC), dated 28 August 2007, and also the comments from the Single Confederation of Workers (CUT), the General Confederation of Workers (CGT), the Confederation of Workers of Colombia (CTC) and the Confederation of Pensioners of Colombia (CPC), dated 28 May 2007, and of the CUT, dated 31 August 2007, referring to issues which have been under examination by the Committee.

Pending issues

–           Collective bargaining in the public sector. The Committee recalls that for many years it has been referring to the need to give effective recognition to the right to collective bargaining of public employees who are not engaged in the administration of the State. The Committee notes the Government’s statement that, under Act No. 411, public employees have the right to submit respectful claims to their respective entities and the latter must reply to the said claims, as guaranteed by article 23 of the Constitution. According to the Government, by virtue of this procedure, a significant number of agreements on conditions of work have been achieved. However, the Committee emphasizes that, under the provisions of Convention No. 98, public employees who are not engaged in the administration of the State shall enjoy the right to collective bargaining. In this respect, the Committee notes Constitutional Court ruling C-1234/05 of 29 November 2005, which declared as enforceable the expression “trade unions of public employees may not submit claims or conclude collective agreements” contained in section 416 of the Substantive Labour Code, provided that, in order to implement the right to collective bargaining established in article 55 of the Political Constitution, and in conformity with ILO Conventions Nos 151 and 154, trade unions of public employees may have recourse to other means of concertation regarding conditions of work, on the basis of the claim made in this respect by these trade unions, pending the regulation of the procedure for this purpose by the Congress of the Republic. The Committee therefore requests the Government to take the necessary steps, in conformity with the ruling of the Constitutional Court, to take legislative measures to ensure the right to collective bargaining of public employees and in the meantime, to promote means of concertation regarding conditions of work. The Committee requests the Government to supply information in its next report on all measures adopted in this respect, in the hope that it will be able to note tangible progress in the near future, and reminds it that it may avail itself of the technical assistance of the Office.

–           Collective accords with non-unionized workers. The Committee recalls that in its previous observation it referred to the need to ensure that collective accords are not used to undermine the position of trade union organizations and ensure the possibility in practice to conclude collective agreements with them, and asked the Government to provide information on the total number of collective agreements and collective accords and the respective number of workers covered by them. In this regard, the Committee notes the Government’s statement that in conformity with Colombian legislation: (a) collective accords and collective agreements can coexist; (b) collective accords may not exceed the benefits laid down in the collective agreements of the same enterprise; and (c) even where a collective accord exists, an employer is obliged to negotiate with the trade union and, in the absence of any agreement, the union is entitled to take the collective dispute to a court of arbitration. The Government points out that the Ministry of Social Security has participated in consultation processes and concluded a satisfactory agreement on various occasions, in the form of either a collective agreement or a collective accord. The Committee observes that, under section 481 ff. of the Substantive Labour Code, collective accords may only be concluded in cases where the membership of the trade union does not include over one third of the workers and refers once again to Article 4 of the Convention respecting the full development and utilization of machinery for voluntary negotiation with workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee emphasizes that direct negotiations with workers should only be possible in the absence of trade union organizations. The Committee therefore requests the Government once again to guarantee that collective accords are not used to undermine the position of trade union organizations and the possibility in practice of concluding collective agreements with them. The Committee also requests the Government to provide information on the total number of collective agreements and collective accords, and on the respective number of workers covered by them.

Finally, the Committee notes the Government’s statement that, in the context of the Standing Advisory Committee on Wage Policies, the Special Committee on the Settlement of Disputes relating to the ILO was reactivated, with a view to handling disputes arising from matters regulated by the ILO Conventions, and giving priority to those relating to freedom of association.